2004 PLP 464 (CLD)

Allah Bakhsh Gondal for Appellant. Muhammad Yousaf Chughtai for Respondent. Date of hearing: 22nd January, 2003. MUHAMMAD SAYEED AKTHAR, J.‑‑‑The plaintiff/ respondent filed a suit on 20‑7‑2002 before the Banking Court‑I, Gujranwala for recovery of Rs.2,73,547 alongwith mark‑up from the date of first default till full and final realization. The defendant/ appellant was served on 30‑8‑2002. He filed an application under section 10(1) of, the Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to defend the suit on.30‑9‑2002 but the same was dismissed by the learned Banking Court on the ground that it was barred by one day from the "personal service" of the defendant/ appellant and no application for condonation of delay had been filed. The suit of the respondent/Bank was decreed "with costs and with cost of fund as certified by the State Bank of Pakistan from time to time and from the date of default i.e. 13‑1‑2000 till full payment except liquidated damages if any".

2. Learned counsel for the appellant submitted that application for leave to defend filed by the appellants was not barred by time as the service on the appellants was effected on 30‑8‑2002 and the application was filed on 30‑9‑2002. The 29th of August, 2002 being Sunday the application was rightly field on 30th of August, 2002. Conversely, the learned counsel for the respondent argued that the application of the appellant for leave to defend the suit was attested on 28‑9‑2002 the same should have been filed on the same day. The appellant being negligent, his application has been rightly rejected and the suit decreed.

3. We have gone through the record and find that the appellant was served on 30‑8‑2002. 29th of September, 2002 being a Sunday, the appellant had no option but to file the application on 30th September, 2002. Under section 4 of the Limitation Act if the period of limitation prescribed for filing the suit, appeal or application expires on a day when the Court is closed the suit, appeal or application may be instituted, preferred or made on the day when the Court reopens. The said section of Limitation Act does not extend the period of limitation prescribed by law; it simply permits suit, appeal or application to be filed on the reopening of the Court if the period of limitation expires on a day when the Court is closed. The plaintiff/ applicant should not be prejudiced by an act of the Court namely its closure. The Limitation Act, 1908 has been made applicable to cases instituted or filed in a Banking Court under Financial Institutions (Recovery of Finances) Ordinance, 2001 by virtue of section 25 of the same Ordinance. The learned Banking Court has completely misdirected himself as the application of law. We therefore, allow this appeal, set aside the impugned judgment/decree and remand the case to the learned Banking Court. The application of the appellant for leave to defend shall be deemed to be pending and shall be decided by the learned Banking Court in accordance with law. Cause remitted with costs. S.A. K. / M‑1707 / L Case remanded.